Opinion
13-P-1939
12-09-2014
COMMONWEALTH v. RULX OLIVIER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial and from the subsequent denial of his motion for reconsideration. We affirm.
This case commenced in the Framingham division of the District Court Department on May 22, 1989, with the issuance of a criminal complaint charging the defendant with one count of operating a motor vehicle after suspension of his license, in violation of G. L. c. 90, § 23, and one count of possession of a class D substance (marijuana), in violation of G. L. c. 94C, § 34. On June 9, 1989, the defendant appeared in court, and the charges were resolved by means of a continuance without a finding (CWOF) until December 11, 1989.
Nearly twenty-three years later, on or around August 28, 2012, the defendant filed a motion for a new trial, claiming that the judge who presided over the proceedings on June 9, 1989, failed to provide him with immigration warnings pursuant to G. L. c. 278, § 29D. In the intervening years, the audio recording of the proceedings was destroyed, and the presiding judge retired. The docket sheet, which remains available, contains no notation as to whether the defendant was warned of immigration consequences.
As the Commonwealth acknowledges, there is no record that immigration warnings were given, and, hence, the defendant is presumed not to have received them. However, that does not mean that the defendant's motion for a new trial has merit. Although the defendant's argument assumes that he entered an admission to sufficient facts, the record does not support that assumption. The docket sheet reflects that the defendant pleaded "not guilty" to both charges on May 22, 1989. While it also contains an entry showing that on June 9, 1989, the defendant received a CWOF until December 11, 1989, there is no check mark or notation to indicate that the defendant changed his plea at any time. So far as the record appears, the defendant did not admit to sufficient facts and hence did not acquire a "conviction" under Massachusetts law, such that the statutory immigration warnings were required.
At the time of the defendant's disposition, G. L. c. 278, § 29D, inserted by St. 1978, c. 383, provided that the court "shall not accept a plea of guilty or nolo contendere" without advising the defendant that if he is not a citizen of the United States, his "conviction" may have enumerated immigration consequences. While the statute as it then existed did not expressly refer to an "admission to sufficient facts" (see now G. L. c. 278, § 29D, as appearing in St. 2004, c. 225, § 1), it was well established by case law that an admission to sufficient facts was the equivalent of a guilty plea for purposes of the statute. See Commonwealth v. Mahadeo, 397 Mass. 314, 317 (1986).
The self-contradictory affidavit of the defendant -- in which, contrary to his appellate argument that he admitted to sufficient facts, he asserts that he actually pleaded guilty -- need not be credited. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998).
The defendant's receipt of a CWOF, in itself, is not determinative of the nature of the plea and whether it resulted in a conviction. See Commonwealth v. Duquette, 386 Mass. 834, 887-888 (1982), observing that "[u]nder the practice known as 'continuing without a finding,' a District Court judge continues a case for a lengthy period of time without making a finding of guilty. The judge may impose certain conditions on the defendant. At the end of the designated period, if the defendant has complied with the conditions of the continuance, the case is dismissed. . . . Apparently these continuances are often granted when the defendant has pleaded not guilty, although some judges insist on a guilty plea."
By the same token, in the circumstances presented, the defendant has not met his burden of demonstrating that he faces more than a hypothetical immigration consequence from the disposition of these charges.
Deciding as we do, we need not address other arguments advanced by the defendant.
Orders denying motion for new trial and motion for reconsideration affirmed.
By the Court (Kafker, Cohen & Milkey, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: December 9, 2014.